Key H-1B Deadlines Approaching

February 7, 2011

Whether employers are dealing with several feet of snow back east or enjoying the sunny and warmer west coast weather, it is time to gear up for H-1B filings.• Reminder that, starting on February 20, 2011, employers must complete the export control compliance attestation questions on Form I-129 for all H-1B cases.• On April 1, 2011, employers may file 2012 fiscal year (FY) H-1B visa petitions with requested start dates of October 1, 2011, when the government's new fiscal year begins. There are no more fiscal year H-1B visas available.• For all other employers who feel less burdened because they are only seeking extensions of H-1B status for their employees or are otherwise exempt from the FY cap, file H-1B visa petitions or extensions six months in advance if possible, because H-1B adjudication times are at an all-time snail's pace of five months.

Background on H-1B Fiscal Year H-1B Visas. The government still only allots 65,000 H-1B visas per year, with an extra 20,000 set aside for employees with U.S. advanced degrees. Exemptions apply for employees who have already obtained a FY H-1B visa with a previous employer or their employers are applying for H-1B extensions on their behalf. Similarly, H-1B employees of nonprofit research or academic institutions are not subject to the H-1B cap.

Forecasts for 2011. We expect more demand for FY H-1B visas than last year. We do not anticipate that Congress this year will increase the number of H-1B visas available like it a decade ago to help employers keep up with hiring needs. On January 26, 2011, the government exhausted fiscal year H-1B numbers, which was about one month later this fiscal year than last year (when it reached the H-1B cap the third week of December 2009). [For any employers who filed their cases on the cut off day, the USCIS will apply a computer-generated random selection process and will notify the lottery winners and losers in the next month or so.]

Best Practices for Securing FY H-1B Visas. Evaluate your current foreign national employee count. Identify employees whose post-graduation practical training work authorization, or other nonimmigrant status which cannot be extended, expires before October 1, 2012. Determine how best to plan for obtaining H-1B visas and avoid being faced with having to take the employees off payroll. Communicate with your hiring managers and recruiters on upcoming hiring needs as spring graduation approaches.

Best Practices for H-1B Extensions or Cap Exempt H-1B Visas- Long Adjudication Times. File as early as possible to avoid having to reward the government for its five month slow processing times with that $1250 extra Premium Processing filing fee for the case to be adjudicated in 15 days or face other H-1B pitfalls. Employers may file six months in advance of the requested start date or six months in advance of the expiration of the current H-1B visa. Driver's License and travel issues can also play a role in strategic planning given the long processing times. In many instances, the validity period of H-1B employees' driver's licenses are tied to the length of stay authorized under the H-1B approval. In some states, DMVs will not renew driver's licenses unless the foreign national presents the original H-1B Approval Notice. Likewise, complications may arise if an employee travels internationally while an H-1B extension is pending.

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